Summary: Mr R says the Council failed to ensure that a contract was in place with his late mother, Mrs C’s, care home for two months in 2019. He says he and Mrs C suffered injustice as the nursing home threatened her with eviction and him with legal action. He says this caused injustice as he spent time and trouble dealing with the matter. The Council was not at fault. It communicated with Mr R and informed him about its actions and his options for funding Mrs C’s care.

The complaint

1. Mr R complains on behalf of his deceased mother, Mrs C. He says the Council is at fault for a failure to ensure that a contract was in place when his mother became liable to pay fees at her care home which led to fees going unpaid for two months.
2. Mr R says he was caused injustice because the nursing home threatened Mrs C with eviction and him with legal action which was distressing. He says he spent time and trouble dealing with the Council.
3. Mr R says he would like the Council to pay a contribution towards the fees.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

6. I read the information sent to me by Mr R and the Council. I spoke to Mr R about his complaint and wrote a letter to the Council requesting further information. I then considered all the information I had gathered and applied the relevant law and guidance before reaching a draft decision on the merits of the complaint.
7. Mr R and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should happen

Residential care

8. The (Choice of Accommodation) Regulations 2014 (SI 2014/2670) set out what people should expect from a council when it arranges a care home place for them. It says that once a needs assessment has determined what type of accommodation will best suit the person’s needs, the person will have a right to choose the provider or location, subject to certain conditions.
9. The council must arrange to accommodate the person in a care home of his or her choice provided:
• The accommodation is suitable for the person’s assessed needs;
• To do so would not cost the local authority more than the amount in the adult’s personal budget for accommodation of that type;
• The accommodation is available; and
• The provider of the accommodation is willing to enter a contract with the local authority to provide the care at the rate identified in the person’s personal budget on the local authority’s terms and conditions.
10. The Council must then set a personal budget to pay for the care that the service user requires. This budget need not be so high as to pay for care in any care home the service user and their family choose. It must though be adequate to cover the cost of residence in at least two residential homes in the Council’s area.
11. The charging rules for residential care are set out in the “Care and Support (Charging and Assessment of Resources) Regulations 2014”, and the “Care and Support Statutory Guidance 2014”. When the Council arranges a care home placement, it must follow these rules when undertaking a financial assessment to decide how much a person must pay towards the costs of their residential care.
12. The rules state that people who have over the upper capital limit are expected to pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
13. The council must assess the means of people who have less than the upper capital limit, to decide how much they can contribute towards the cost of the care home fees.
14. A temporary resident is someone admitted to a care or nursing home where the agreed plan is for the stay to be for a limited period, such as respite care, or where there is doubt about whether the stay will be permanent.
15. The Care and Support (Charging and Assessment of Resources) Regulations 2014 and the Care and Support Statutory Guidance 2014 set out charging rules for temporary residential care. When a council arranges a temporary care home placement, it must follow these rules when undertaking a financial assessment to determine how much a person has to pay. The Council can either charge the person under the rules for temporary residential charging or treat the person as if they are still living in the community (i.e., the non-residential rules for charging).

Charging

16. If the service user can afford to pay some or all of the costs of their care, then the Council should pay for the care and then recover the costs of the care from the service user or their representatives.
17. Councils should carry out a financial assessment to see what, according to a standard formula, a service user can afford to pay. Where a service user has an income, most of this, apart from that required to cover necessary expenses at their home address and a weekly living allowance of £24.90 can be used as a contribution towards the fees.

Deferred payments/ Letter of undertaking

18. Many elderly people have little ready money but have an asset, such as a home, which could be used as security for the costs of their care. In order to lessen the stress of selling the property at a difficult time, the government has passed legislation requiring councils to offer ‘deferred payment agreements’ (‘DPAs’). (Care and Support Statutory Guidance, 9)
19. Councils can only refuse to enter into such agreements in certain limited circumstances such as where they cannot secure the debt with a first charge against the property or where they or their representatives refuse the terms and conditions of the agreement. (Care and Support Statutory Guidance, 9)

Other security

20. In some circumstances, it is not possible for a service user to enter into a deferred payment agreement. In these cases, councils may accept other forms of security for payment of the care fees. A service user may, for example, have other assets which could be used as security for the debt. A solicitor’s letter of undertaking is one such form of security where a solicitor agrees to pay the council the amount of debt which has accrued on sale of any property or other assets.

Circumstances in which councils can stop paying for care

21. If a service user or their representatives refuse to enter into a DPA or other arrangement, a council may refuse to defer or loan any more charges to them.
22. The council should provide a minimum of 30 days’ notice that further deferrals or loans will cease; and should explain to the relevant person how their care costs will need to be met in future. For example, that they may be required to meet the costs themselves.
23. Local authorities exercising these powers to cease deferring additional amounts should consider their decision to do so whilst considering the person’s circumstances and their overarching duties under the well-being principle. (Care and Support Statutory Guidance Chapter 9)

12-week property disregard

24. In cases where a service user who moves into permanent residential accommodation has a property, the council can apply a ‘12-week property disregard’. This means that, during this period, the value of the property is not considered when calculating their contribution towards their care. The purpose is to provide a period when they could sell their property and release funds or put other arrangements in place. It will also prevent them from being charged unfairly if the stay turns out to be temporary.
25. At the end of this period, though, the service user’s property is considered when their contribution is calculated.

Third party top-ups

26. Sometimes the full cost of the care home chosen by the person is greater than the cost of the care a council has assessed in the personal budget. If a person chooses a home, the short fall between the personal budget and the full cost will have to be paid by a third party i.e., relative or friend and cannot be paid out of the resident’s own money. In these cases, there should be a separate agreement with the council clearly identifying the amount the third party has agreed to pay.

Reablement/continuing healthcare

27. When a service user leaves hospital but has continuing healthcare (CHC) needs, the NHS will pay a contribution towards their nursing care costs. The NHS often uses a decision support tool (DST) to assess whether the service user will receive ongoing payments and, if so, what percentage of the costs it will pay.
28. After a decision on funding CHC is made, a service user or their relatives may appeal the decision.
29. These costs are separate from the costs of social care for which the Council is normally responsible.

What happened

30. Mrs C was an elderly lady who lived in the Council’s area. In 2018, she had been receiving care arranged by the Council for some years. In December 2018, after a period in hospital, she returned home but it was quickly found that she was unable to live at home, even with a care package in place.
31. The Council arranged a one week ‘Prevention of Hospital Admission placement’ at a local nursing home which I will call ‘the Home’. The Home was chosen because it had availability but Mrs C’s family were pleased with the placement.
32. It quickly became apparent that a longer placement would be required. In January 2019, a Council officer contacted the Home and asked if it would be able to provide a permanent place. Shortly afterwards, another officer, Officer P, took over management of the file and requested a review of long term needs and a financial assessment. She made a funding request for a temporary placement.
33. The Council set a personal budget of £603 per week, which is its standard rate for residential care.
34. In early February 2019, Officer P contacted Mr R. She told him that there would be a review of Mrs C’s care in late February. She updated Mrs C’s care plan to show she would stay at the Home until the end of February.
35. At the review, it was concluded that Mrs C required a permanent placement. It was confirmed that the National Health Service would continue to pay Mrs C’s nursing care costs for the time being.
36. The Council says it wrote to Mr R requesting a ‘decision on 12-week property disregard/deferred payments’. The finance team sent him a finance pack. He replied saying he needed more information to decide how to proceed.
37. The fees for a permanent placement at the home were £900 per week exclusive of CHC costs which would be funded by the NHS. This left a shortfall of some £297 after the Council paid its standard rate. The Council informed Mr R about the shortfall and asked him to arrange a top-up payment. Officer P then put in place arrangements for a 12-week property disregard and a DPA.
38. The Council then learned, in March 2019, that Mrs C was not eligible for a DPA. Officer P wrote to Mr R explaining that the Council would need some other arrangement, such as a solicitor’s letter of undertaking to allow it to continue funding care.
39. The Council says that, in March 2019, Mr R confirmed that the family would pay the top-up fee. Mr R denies that he ever said this. Either way, the notes show that Mr R later said he would not pay the top up fee until the continuing health care assessment had been carried out. It is accepted by both the Council and Mr R that no top up fees were paid.
40. Mr R later said that he had found another nursing home which would be cheaper so no top up would be required. He said, ‘in addition, we need to consider how [Mrs C’s] care will be paid for after the 12-week property disregard’.
41. The Council says it put Mr R in touch with a ‘home finder’ who would help him find a cheaper alternative for Mrs C.
42. The Council says it contacted Mr R on 20 March 2019 because no top-up fees had been paid. Officer P told Mr R that the longer Mrs C remained in the Home, the greater the top-up debt would be.
43. The Council’s notes show that Officer P understood that Mr R was still in contact with the home finder but that it later emerged that Mr R had stopped talking to the home finder because he wanted to wait for the result of the DST. Mr R denies that he ever stopped talking to the home finder.
44. The Council says Officer P spoke again to Mr R in late March and they discussed the outstanding top-up fees again. They say Mr R was still looking for cheaper care homes and would not commit to pay the top-up fees and that he wanted to wait for the outcome of the DST before making any decision. The notes show that Officer P said this was a separate matter to the top up fees.
45. The Council says that, on 27 March 2019, Officer P told Mr R that Mrs C could not stay at the Home until the CHC funding decision was made unless he paid the top up fees. The Council says she asked the home finder to start looking for alternative homes again. It says Officer P phoned the Home and told them the place would remain temporary as there was no 3rd party top up in place. The Home agreed to a fee of £630.35 for the temporary stay.
46. Mr R denies that Officer P contacted him. I have seen records which say that it did and so I find it more likely, on balance, that she did. However, the important point is that Officer P phoned the Home and told them that the place remained temporary.
47. The NHS decided in early April 2019 to pay a proportion but not all of Mrs C’s CHC costs. Mr R told the Council he intended to appeal this decision.
48. Officer P contacted Mr R to discuss funding on 10 April 2019. The note shows that they agreed that she would request funding for a 12-week property disregard at the Home. She then contacted the Home and said that the property disregard would begin soon but could not say exactly when.
49. Officer P told the funding team that she believed that it was in Mrs C’s interests to stay at the Home but was aware that the fees there were more than the Council’s standard rate. The Council contacted the Home to see if they would accept the Council’s standard rate for the 12-week disregard period. After contacting its head office, which took a week, the Home refused to do so. Officer P then contacted the funding team to see if the Council would fund the £260 per week shortfall so that Mrs C could stay at the Home for the 12-week property disregard period.
50. While this decision was pending, the short stay period was extended. On 10 June 2019, the Council agreed to fund the shortfall over the property disregard period.
51. A note on the file shows that a funding officer, while confirming that the family would not be paying the top-up fees for the relevant period, asked, ‘can SW confirm if family are aware that, at the end of the 12 weeks they will need to request further funding of either a deferred payment or letter of undertaking so that funding continues from that point. The additional fees from that point will then count against the property’.
52. The 12-week property disregard began on 11 June 2019 and therefore ran until 3 September 2019. The Council calculated the fees and sent a letter to Mr R setting out the period of the 12-week property disregard and suggesting a meeting on 22 July for review. The meeting was held on 13 August 2019. The Council has provided minutes of the review meeting.
53. On 3 September 2019, the Council learned that the DST appeal had not been upheld. The same day, Officer P wrote to Mr R saying the 12-week property disregard had finished and the Council had not received a letter of undertaking.
54. On 9 September, Mr R emailed Officer P saying that the local CCG was considering another DST as Mrs C’s condition had worsened.
55. On 23 September 2019, Officer P emailed Mr R asking for an update on the letter of undertaking.
56. On 7 October 2019, Mr R replied saying he was still waiting for contact from the finance team. Officer P then contacted the Income team who advised that they had no record of a request for a meeting with Mr R.
57. Mr R complained to the Council in October 2020. He said:
1. he had not been informed of the 12-week property disregard and
2. The Home had not been informed that the Council intended to stop paying for care on 3 September 2019
58. The Council responded to Mr R’s complaint on 10 December 2020. It apologised for the delay but said Mr R had been informed of the 12-week disregard. It said Officer P had emailed him on 12 June 2019 and the Council also sent him a letter on 17 June 2019 explaining the disregard and how, if Mr R chose not to enter into a DPA, the costs of care would be borne by him from 3 September 2019 onwards.
59. The Council acknowledged that it did not send the letter by recorded delivery or by email. However, it could confirm it was sent and also that Mr R had been present at a review meeting on 13 August 2019 in which the matter had been discussed.
60. It also said it had sent a form to the Home in June 2019 which clearly stated that funding was agreed until 2 September 2019.
61. The Council acknowledged that it could improve its communication and apologised for failings of communication and for other matters relating to care needs assessments in 2020

Was there fault causing injustice?

62. Mr R says he was not aware that the 12-week property disregard had begun in June 2019. He says he did not know it had begun and this is why there was a period between September and November 2019 when the fees were not paid.
63. The Council has sent me correspondence between Mr R and the Council in which the DPA, the 12-week property disregard were discussed.
64. The Council says it did inform Mr R that the 12-week property disregard was beginning on 11 June 2019 and would end on 2 September 2021. It has shown me a copy of an email from Officer P to Mr R on 12 June 2019 which explains that the disregard began on 11 June. Attached is information about DPAs in which details of various options are set out including ‘You may choose to pay the full cost of your care from your available income and assts or a family member may choose to pay some or all of this for you’.
65. The Council has also provided a copy of an email from Officer P to Mr R dated 3 September in which she discussed the DST/CHC decision and asked Mr R if he required any further assistance from the Council. If not, she said, she would cease her involvement.
66. The Council has also provided Mr R’s reply to Officer P dated 8 September 2019 in which he says he received the letter of 17 June (in which the property disregard was outlined).
67. That being the case, I do not uphold Mr R’s complaint that he was not aware of the property disregard. Nor can I uphold his complaint that the Council did not inform the Home that funding was only in place until 2 September 2019 as the relevant form, sent by the Council to the Home, shows that this was the case.
68. Mr R had sufficient information to have known that Council funding would be discontinued on 3 September 2019 and that, if no DPA or alternative arrangement was in place, Mrs C would have to fund the care herself. I do not find fault.

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Final decision

69. I have found that the Council was not at fault. I have closed my investigation.

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Investigator's decision on behalf of the Ombudsman